Proof of service of notice is essential for the validity of a decree. The issue of maintainability under specific laws should be raised before the appropriate court.

Headnote:
Marriage - Multiple Marriages - Service of Notice - Setting aside of Decree
Fact of the Case:

The wife filed a petition against her husband, claiming that they had married three times under different customs and laws. The District Judge passed a decree in favor of the wife, setting the husband ex parte.
Finding of the Court:

The Court found that there was no proof of service of notice on the respondent, and the decree was passed without proper service. The Court also addressed the issue of maintainability of the petition under the Indian Divorce Act.
Issues: Proof of service of notice, maintainability of the petition under the Indian Divorce Act
Ratio Decidendi: The Court held that without proper proof of service of notice, the decree could not stand. The issue of maintainability under the Indian Divorce Act was left to be raised before the District Judge.
Final Decision: The decree passed by the District Court was set aside, and the original petition was remanded for fresh disposal with a fresh notice to the respondent. The respondent was advised to enter appearance without waiting for any notice from the Court.

Judgment :-

SRINIVASAN, J.

It is very interesting case, in which the parties have married admittedly three times. The petition is filed by the wife against her husband. According to the address given by the petitioner in the original petition, the respondent is living away in Sri Lanka. The petitioner has also stated that she was serving as senior Head Nurse in Muscat at the time of filing of the petition. According to the petitioner, she married the respondent in accordance with Hindu custom on 7-11-1985 at Thiruchi Kumara Vayalur temple. Again the petitioner converted into a Christian and got married in a Church at Ulsoor, Bangalore on 30-11-1985. For the third time, the parties chose to effect a marriage under the provisions of the Special Marriage Act on 13-12-1985 at Thiruchi.

2. It is seen from the records that the notice in the original petition had not been returned as served. A letter would appear to have been written to the District Judge by the respondent, which was mentioned by the District Judge on the docket of the petition on 7-4-1994. The endorsement made by the District Judge is,

"Letter received from the respondent by Post. Postal ack.

For appearance of petitioner 10.6." *

On 11-6-1994,the learned District Judge made the following endorsement :

"In view of the correspondence made by respondent to this Court, it is obvious that notice to the respondent is sufficient. Respondent called absent and set ex parte. Petitioner examined as P.W. 1. Exs. A-1 to A-6 marked. Heard the counsel for the petitioner. For orders 24-6-1994".

Thereafter, a decree was passed by the District Judge.

3. Learned Counsel for the respondent has produced before us a copy of the letter dated 1-8-1993. According to the learned Counsel, the letter which was sent to the District Judge by the respondent is only the original of the letter and we find in the said letter that it is requested by the respondent specifically that in the event of any divorce petition being filed by the respondent's wife, a copy of the same shall be sent to him to the address mentioned in the letter. The address given in the letter is as follows :-

"John Francis,

MOD (PA Directorate)

P.O. Box 113, Muscat

Sultanate of Oman".

Though the endorsement made by the District Judge on the docket of the petition makes a reference to the letter, it is not found among the records sent to this Court. In the judgment of the District Judge, it is stated as follows :-

"In this present O. P. No. l7/92 notices were taken for service to the respondent in more than one occasion; but on no occasion notice was served on the respondent at Colombo. However, the letter and other complaints sent by the respondent to the petitioner and authorities which are marked herein show that the respondent knows this present proceeding and was wantonly evading the receipt of notice. Therefore, it can be taken that the service of notice on the respondent is sufficient. Accordingly this Court passed an order on 10-6-1994 setting the respondent ex parte."

4. The above passage in the judgment is not in accordance with the endorsement made by the District Judge on the docket of the petition. In that endorsement, there is no reference whatever to the other correspondences referred to in the judgment. The endorsement refers to only the correspondence between the respondent and the Court. The only correspondence that is mentioned in the docket is a letter said to have been received on 7-4-1994 by the District Judge. The District Judge ought to have kept the said letter on file and marked as a Court's exhibit, if the Court wanted to rely on the same for holding that service was sufficient. In the absence of any letter among the records, we have no reason to accept the statement of the District Judge that the service of notice on the respondent in this case is sufficient. We have to hold that there is no material on record to prove service of notice in the original petition on the respondent. Hence, we hold that the respondent

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